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40 TESSIER v., WYSE.
afterwards acquired while the judgment remained in force. (I)
And consequently, if the defendant died after judgment, and be-
fore execution or satisfaction, the plaintiff might, as it would
seem in England, and certainly here, without first proceeding
against the executor or administrator to obtain satisfaction of his
judgment, at once sue out a scire facias against the heirs and terre-
tenants of the land descended; and, upon no good cause being
shewn, have execution against the lands; and thus enforce pay-
ment from the real assets, although there might be more than a
sufficiency of personal estate of the deceased to discharge all his
debts, (m)
But as those English statutes, which gave the right to have the
lands extended for the satisfaction of debts, comprehended all the
lands of the debtor, it therefore followed, that if, on his death after
judgment, his lands passed into the hands of several, who, because
of their being alike liable, were entitled to contribution from each
other, they should be all summoned by scire facias; and if any one
of the several heirs should be within age, the parol should demur
as to all. (n) This right to contribution is an equity arising be-
tween those who are alike liable, because of the real assets in their
hands. It is therefore only necessary, that the creditor should
merely have them summoned, to enable each defendant to obtain
justice for himself as against the others, without prejudice to the
claim of the creditor; since it rests with the defendants alone to
insist upon and have the contribution adjusted among themselves;
for, if they, or any of them, on being summoned, fail to plead,
that they are not liable, or that there are others who are liable, and
who have not been warned; or to shew the extent of the contribu-
tion, the plaintiff shall have his judgment against those only who
have been warned, which will be conclusive against them, (o)
But by the common law, where a debtor, by a writing under
his hand and seal, binds himself and his heirs for the payment of a
debt and dies, leaving real estate to descend to his heir, such heir
is bound, in respect of such real assets descended, for the payment
of the debt. And such bond creditor may, at his election, sue the
(l) 2 Inst. 469; Jefferson v. Morton, 2 Saund. 6; Uderkill v. Devereux, 2 Saund.
69, 71; Harris v. Saunders, 10 Com, Law Rep. 373.—(m) Bricknold v. Owen, Dyer,
208, pl. 15; Stileman v. Ashdown, Amb, 16; Panton v. Hall, Carth. 106; 2 Harr.
Ent 444, 749, 763, 767, 755.—(n) Co. Litt. 290; Bac. Abr. tit. Execution, B. 2,
4; Sir William Harbert's Case, 3 Co. 13.—(o) Bac. Abr. tit. Scire Facias, C. 5;
Michel v. Croft, Cro. Jac. 506; Jefferson v. Morton, 2 Saund. 8, note 10; Averall
v. Wade, 10 Cond. Chan. Rep. 498.
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